Supreme Court Declines Review Of Bar On School Graduations In Churches

Earlier this year, the Supreme Court upheld the practice of a small town in New York to open its council meetings with prayer, specifically prayers that were exclusively Christian. As I noted at the time, that decision struck me as a reasonable interpretation of the Establishment Clause and the proper role of religion in government, especially given the rather de minimis impact of legislative prayer. In addition to that case, the Court had also been considering whether to grant an appeal in a case out of the 7th Circuit involving a school district that had the practice of holding its graduations in a church facility. Lower courts had found the practice to be unconstitutional, but there was some thought that the Court might take the case to clarify its views on religion in schools in light of the decision earlier this year. As it turned out, however, the Court denied the appeal, although the denial did prompt Justice Scalia to take the unusual step of issuing a dissent to the denial:

The U.S. Supreme Court on Monday (June 16) let stand a lower court ruling that a Wisconsin high school acted unconstitutionally when it held its graduation ceremonies in a local megachurch.

The case, Elmbrook School District. v. Doe, involved a high school in a suburb of Milwaukee that rented the nondenominational Elmbrook Church for its graduation exercises multiple times through 2009. In 2012, the Chicago-based 7th U.S. Circuit Court of Appeals called the event “offensive” and “coercive.” The church’s banners, pamphlets, Bibles and other religious materials remained in the sanctuary during the graduation.

As is their custom, the justices did not give a reason for declining to hear a challenge to the 7th Circuit ruling.

Monday’s decision may be a signal by the court that despite its approval of sectarian prayers at public meetings in the Town of Greece v. Galloway decision in May, it draws the line at exposing children to religious symbols when they have no choice about it.

Justices Antonin Scalia and Clarence Thomas dissented in the decision to let the lower court ruling stand. They argued in a seven-page opinion that the Greece v. Galloway decision undercut the 7th Circuit decision in Elmbrook.

In the dissent, Scalia, a Catholic, likened the exposure of children to religious symbols at graduations to his own distaste for the public playing of “rock music or Stravinsky,” implying he — and they — have to put up with it but are not damaged by it.

“It may well be . . . that the decision of the Elmbrook School District to hold graduations under a Latin cross in a Christian church was ‘unwise’ and ‘offensive,'” Scalia wrote. “But Town of Greece makes manifest that an establishment of religion it was not.”

The Supreme Court sent a fairly clear signal on Monday that its new willingness to allow more religion in public life probably does not mean that it will allow children to be exposed to more such symbolism when they don’t have a choice about it. Over two Justices’ fervent dissent, the Court voted to leave intact a lower court ruling that it is unconstitutional to hold a high school graduation ceremony in a church with prominent religious banners and objects.

The Court issued only a one-line order denying review of a case that it had been holding (Elmbrook School District v. Doe) until it had decided a case about the recital of prayers at local government meetings. But, in so doing, the Court silently rejected the suggestion of the dissenters that it return the school graduation case to a lower court to take into account the prayers decision (Town of Greece v. Galloway, decided May 5).

Because the Court never explains its refusals to hear a case, there is no way to know what led it to bypass a case, especially when some of the Justices have pressed it energetically to grant review, as almost certainly happened behind the scenes with the Elmbrook case. The case was listed for the Justices’ discussion ten times after they had decided the Town of Greece case.

The dissenting opinion by Justice Antonin Scalia, joined by Justice Clarence Thomas, gave significant hints about what those discussions could have covered. Those two argued that theTown of Greece decision had undercut the basis of the lower court ruling against holding graduation rites in a church, that the town board prayers case had made it harder to prove coercion from exposure to religious symbols, and that the case also had demanded a more searching study of the historic background of a practice involving some form of religious expression or display, which the dissenters said the lower court did not do. None of those arguments, spelled out in a seven-page opinion, moved the rest of the Court.

The practical result is that the lower court decision — by the U.S. Court of Appeals for the Seventh Circuit — becomes binding, at least for the school system involved in the case: a public school district in Brookfield, Wisconsin, a western suburb of Milwaukee. School officials, finding school facilities too cramped or uncomfortable for graduation exercises, moved them to the sanctuary of a local non-denominational, evangelical church. That sanctuary was dominated by a very large Christian cross and a number of religious banners, and there were Bibles, hymnals, and religious literature in the pews where students and their families would be seated.

The en banc Seventh Circuit, splitting seven to three, ruled that the exposure of the students and their younger siblings to such symbolism was a form of coercion of religious beliefs. The school district asked the Supreme Court to take up the case, arguing that there was no attempt to promote religious views on the audience at the ceremonies.

As I’ve noted many times in the past, it’s usually mistaken to draw any kind of meaning from the Court’s denial of a specific appeal. In this case, though, it seems rather obvious that the Court was sending the signal that its decision in Town of Greece was not intended to impact the logic behind the long line of case law dealing with the proper role of religion in public schools. Indeed, one could possibly even say that the Court is implying that there may be different standards for even de minimis governmental acknowledgments of religion depending on whether the intended audience is primarily made up of adults or children. There are several reasons why such a distinction would make sense, of course. As Denniston notes, children in public schools do not have the same choice to be present that an adult at a public meeting does, meaning that actions that tend to advance religious ideas in schools have an inherently coercive nature that necessitates greater scrutiny. Additionally, since children generally don’t have the same judgment skills and willingness to speak out against authority figures that adults do, religious endorsements by school officials are potentially more intimidating. These are ideas that have served as the underpinning of nearly every Supreme Court case dealing with religion in public education since the landmark case of Engle v. Vitale, which struck down New York’s mandatory school prayers.

In this particular case, the Court’s denial of certiorari means that the 7th Circuit’s ruling that the practice of holding graduation ceremonies in churches is unconstitutional. This strikes me as a correct result. If the ceremonies were being held in a church-owned property that wasn’t filled with religious symbols, then perhaps it would be a different story, but a public school graduation in a church is clearly beyond the pale. Eventually, however, I think it’s clear that the Supreme Court will have to deal with the impact that the Town of Greece decision has on its religion in schools case law. This was not the case in which that would happen.

About Doug MataconisDoug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway.
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@C. Clavin: Good Lord, me too. When people ask for examples of left wing craziness that’s as stupid as right wing nutjobbery, I always point to the ones who file lawsuits about religious issues like this. Really, your kid isn’t going to convert to Christianity just because she spent an hour in church. And if she did, then you are a lousy parent.

If the ceremonies were being held in a church-owned property that wasn’t filled with religious symbols, then perhaps it would be a different story, but a public school graduation in a church is clearly beyond the pale.

Exactly. What I can’t believe is that the PTA didn’t attempt to organize some effort to decorate around/over the religious symbols to make it more palatable for a public school graduation, but I guess parents only have so much time.

School officials, finding school facilities too cramped or uncomfortable for graduation exercises, moved them to the sanctuary of a local non-denominational, evangelical church.

So, they had a crappy gym? Then hold it outside. Reserve a park or something. There are options that aren’t churches.

Really, your kid isn’t going to convert to Christianity just because she spent an hour in church. And if she did, then you are a lousy parent.

I mean, I get what you’re saying (kid’s mind is too easily swayed by decorations to be a critical thinker), but it still kinda comes off as saying you’re a lousy parent if you kid converts to Christianity.

I’m reminded of the tapestry copy of Picasso’s Guernica at the UN…which Powell and Negroponte covered with a large blue curtain when they gave press conferences leading up to the greatest foreign policy blunder in our history.
The two things have nothing in common…but I was reminded of it.
So cover anything that offends with blue cloth (Lewinsky’s dress was blue, no?).
Words to live by.

it still kinda comes off as saying you’re a lousy parent if you kid converts to Christianity.

What’s your point?
Seriously though…a close friend of mine is an atheist and a single mom…but is leaving her daughter to find her own way. She went to a protestant school for a bit…is exposed to Hebrew ceremonies (her family is Jewish)…and attends Catholic church with her friends. She speaks to her like an adult and answers questions honestly and fairly.
It’s a beautiful thing to watch.

@C. Clavin: I don’t know, I got an odd feeling from it. “Of all the religions you could have picked, you had to pick Christianity?! The one with all the molesting priests and the infallible asshole in a big hat? Why couldn’t you have picked a nice faith, like Baha’i or some reform Buddhism? Your father and I spent some time in our youth as devotees of Odin, you know.”

@Tillman: Yeah, I guess I could have put it more artfully. If you raised a kid who’s swayed by one hour’s exposure to something, be it religion or drugs or whatever you’re against, then either those values aren’t very good to begin with or you’ve done a pretty lousy job showing your kid the value of what you believe in. (Or your kid is just a normal teenager who’s going to rebel against whatever you believe in.)

@Tillman: I only picked Christianity because that’s the religion involved in the original case. I meant no disrespect to Christianity (I spend every Sunday morning in a Christian church), if that’s what you meant.
.

U.S. Special Operations forces captured one of the suspected ringleaders of the terrorist attacks in Benghazi in a secret raid in Libya over the weekend, the first time one of the accused perpetrators of the 2012 assault has been apprehended, according to U.S. officials.

In the dissent, Scalia, a Catholic, likened the exposure of children to religious symbols at graduations to his own distaste for the public playing of “rock music or Stravinsky,” implying he — and they — have to put up with it but are not damaged by it.

“It may well be . . . that the decision of the Elmbrook School District to hold graduations under a Latin cross in a Christian church was ‘unwise’ and ‘offensive,’” Scalia wrote. “But Town of Greece makes manifest that an establishment of religion it was not.”

I agree with Justice Scalia on this one.

As a person who has attended many graduation ceremonies over the years – my own, friends, family and so forth – I can tell you the most important symbol I pay attention to is my watch, I usually find myself wondering when the ceremony will be over, so that actual fun and enjoyment can begin.

U.S. Special Operations forces captured one of the suspected ringleaders of the terrorist attacks in Benghazi in a secret raid in Libya over the weekend, the first time one of the accused perpetrators of the 2012 assault has been apprehended, according to U.S. officials.

What? I didn’t even know Hillary Clinton was in Libya last weekend?!?!

Unfortunately, this type of ruling doesn’t comport with the realities of flyover country, where public space for the community is often wanting.

This struck me over the weekend while driving a long ways through rural America, through shrinking towns, boards across stain-glass windows and closed schools. (NPR reported on this recently as well; larger farms = fewer people). The occasion was a family member’s new pool. The city pool had closed several years ago. I heard about a graduation from the next county over that was held in an ice-rink. It was in the 80s and storming outside, 50s inside.

Elmbrook is a Milwaukee suburban school, so its not really the same story, but suburbs are not known for community centers, and here the school’s all-purpose gymnasium without air-conditioning was not comfortable in June. It seems like the choice of venue was in comfort, parking and size of facility.

But the bottom line, the Courts continue to infantilize children, as if they don’t remember their own childhood. 18 yrs olds are old enough to fight and die for their country and vote in the basements of churches, an hour or two in a church in which they probably aren’t paying attention to anything is like brain-washing.

I’ve spent more than my fair atheist’s share of time in a church. But there’s a difference in going to a church for a family event or a fundraiser, and being forced to go there by my school. That’s what everyone here seems to be missing.

Hmm, by the time I finished my rant, most of my points were already made.

The one big negative I read in the 7th Circuit decision was that one year, the church handed out religious pamphlets to the students, which is certainly wrong, but that appears to have been stopped.

@Tillman: “So, they had a crappy gym? Then hold it outside. Reserve a park or something. There are options that aren’t churches.”

I’m going to have to assume that you haven’t lived in the Midwest in June. The weather tends towards miserable or storming. Though my high school graduation was on the football field with the basketball gym as the back-up. Is the First Amendment different in varying climates?

In fact, I just looked up the 10 day forecast for Brookfield, Wisconsin, and while there are thunderstorms the next three days, for the seven days after that the weather is dry, sunny to partly sunny, with daytime highs ranging from 72 to 84. Hardly the type of weather that makes the outside unlivable.

@Rafer Janders: The point is you are still not going to schedule an outdoor activity in June without an indoor alternative. (And these are scheduled several months in advance) My son usually averages about 3-4 baseball games a week, and so far this year, the rainout rate is about 50% (though this includes rain falling before the games that doesn’t dry up) And many of the schools in this part of the country are not air-conditioned; they were never designed as all-year facilities.

Our local regional high schools graduate over 1000 students some years. While the school auditorium has enough seats to handle school functions, you’re talking over 6000 people if everyone gets 5 tickets (which is what I know one school gave out). Most of them have to rent the local performing arts center as it’s the only place around with that many seats. The only other place I can think of around here is a megachurch, but that only holds about 3000.

…a high school in a suburb of Milwaukee that rented the nondenominational Elmbrook Church for its graduation exercises multiple times through 2009.

Gotta wonder how much the church earned in those multiple rental transactions. Good bet they did not “Render that which is of Caesar unto Caesar.”*
Maybe if tax was assessed and collected on all property owned by religious organizations in Waukesha County Wisconsin the School District of Elmbrook would have enough money in it’s budget to build a new gym with adequate refrigeration.
* Mark 12:17 Jubilee Bible 2000

@Rafer Janders: I didn’t downvote the weather. And honestly I’ve been to Brookfield, and its climate isn’t probably all that bad; it may be close enough to the Lake to enjoy its moderating effects. But the Seventh Circuit has created the law for Illinois, Wisconsin and Indiana.

BTW, did anyone see the full name of the case? “Elmbrook School District v. John Doe 3, a minor by Doe 3’s Next Best Friend Doe 2, et al.”

Am I correctly reading that one of the defendants is the bastard kid of John Doe 3 and John Doe 2? Should said bastard be allowed to be party to the suit when their parent John Doe 2 apparently didn’t have an issue? Shouldn’t one of them be a Jane Doe? What happened to John Doe 1? What does John Doe 3’s fully best friend think about all of this?

Exactly. What I can’t believe is that the PTA didn’t attempt to organize some effort to decorate around/over the religious symbols to make it more palatable for a public school graduation, but I guess parents only have so much time.

@Stormy Dragon: Well that’s a horse of a different color. Our church rents out our building occasionally but the only person from the church that is there is our custodian to make sure no one trashes the place. We would never think to do that – that’s awful.

@ernieyball: Our church routinely rents out the fellowship building for a fee that basically covered utilities, no “profit” is made. Any rent collected was put in the building fund that helps pay to keep up the facilities. The church has policies on rentals that interested groups and parties must adhere to, including no alcoholic beverages, and no loud/inappropriate music. We have also rented out for elections, community meetings, and local school music programs. There are a few “religious” symbols, art, and messages in there, but no one has ever complained.
Having a religious talk in a graduation is one thing, but just being in a building with some crosses and religious art is another. People are there for a graduation. They notice nothing else.

Also, imagine if a public high school announced they were holding graduation in a mosque. How many of the people saying “a church is just a building” today would be having a nationwide freak out about “OMG, SHARONA LERZZZZZ!!!”?

@Stormy Dragon: I mentioned the pamphleteering earlier, but my underdstanding was that it was one year this happened and it was done without the school was behind this. When this issue was brought to the Superintendent’s attention, he ordered it be stopped and also asked the Church to remove all nonpermanent banners. The Church refused to veil the Cross, however. The distribution of religious pamphlets are clearly wrong, but the lawsuit was bought to stop the use of a religious facility, not the distribution of religious literature. The school built a new facility in 2010 that they now use, so that’s roughly about ten years they used the church.

@Stormy Dragon:
and there’s your problem. If the church wouldn’t allow that, they should have found somewhere else, even another church that would allow the imagery to be temporarily draped or otherwise obscured during the ceremony.

So the church was being a jerk also. We had a situation in town where the local synagogue had a fire. A neighboring church offered it facilities. Every week they cooperated by respectfully taking down the Christian symbols and then putting them back up for Sunday services. No one had an issue.

As usual with these cases, when hearing the initial facts of the controversy in the initial post, the only thing that seemed “offensive” was the appeals court calling a graduation in a church “offensive.” However, knowing the law as I do, everyone’s synopsis of their side’s characters always seems much more sympathetic than reality once you get the rest of the story. The comments make it apparent this was more than just a graduation in a church, but the much more inappropriate graduation in a church + proselytizing.

One other thing, some people have talked about practical considerations having to do with the weather. Ok, all the high schools in the county I grew up have long held their graduations outside at the football stadium. My own graduation was there, in fact. And yes, it’s in late May/June, and it’s in Florida. It’s hot, you sweat, and when the stadium lights come on, those big freaky cicadas come out and dive bomb everyone. But it’s one of the few places that can hold 500+ students and their families, and it has worked for years. Certainly every town in “flyover country,” not matter how insignificant, has a high school football stadium. After all, after the megachurch isn’t it the holiest place in town for most folks?

One aspect of this case is this: the school should be the one that decides where they hold their graduation ceremony and any other events, subject to approval of the school board of course.
This is not the province of state or federal courts.

@anjin-san: One of the predictable stages in the life of a church (after planting, organizing, startup, growth) is the building project phase. Then usually more building. The physical structures become a wolf at the door: demanding monthly mortgage payments, utilities, and maintenance. Usually for buildings that are used for a few hours a week. One pastor of a megachurch said that they were always one Sunday’s offerings away from total financial disaster. For many church members the physical plant of the church takes on a whole other importance. God’s help to a pastor or leader who wants to change the paint, some chairs, or move a wall.
“If you want to move a chair in a church, you do it one foot a week.”